Board Resolution ~ 05/20/2011

Adopting Model State Legislation Reforming the Use of Asset Forfeiture

Resolution of the National Association of Criminal Defense Lawyers Adopting Model State Legislation Reforming the Use of Asset Forfeiture

Washington, DC May 20, 2011

Whereas, Civil asset forfeiture represents one of the most fundamental threats to the individual liberties of those accused of criminal activities as well as citizens not charged with any crime. Civil asset forfeiture allows the state agencies to seize and gain title to property under the claim that it was associated with a crime, but without the burden to prove beyond a reasonable doubt that any person actually committed any crime. Eighty percent of persons whose property is seized are never even charged with a crime.

Whereas, Civil asset forfeiture reverses the presumption of innocence that is fundamental to the American criminal justice system. Persons whose property is seized through civil asset forfeiture are required to prove their innocence or the innocence of their property in order to recover their property. Many find it incompatible with their defense to criminal charges to include litigating a civil lawsuit to get back their property or lack the resources to take on the overwhelming power of the state.

Whereas, Civil asset forfeiture encourages the corrupting practice of policing for profit, where police agencies and prosecutors’ offices keep seized property for their use. Civil asset forfeiture has become a windfall to law enforcement agencies. In 2008, the U.S. Department of Justice held more than $1 billion in seized assets. Other law enforcement agencies held hundreds of millions more.

Whereas, Innocent owners, including spouses and other family members, are routinely stripped of their rights through civil asset forfeiture without recourse based on the alleged actions of another family member. Family members are often forced to simultaneously face the consequences of a loved one in jail and the government seizing what few assets they have left.

Whereas, The doctrine of “Equitable Sharing” allows local law enforcement agencies to evade the restrictions of state law and use broad federal laws with lower standards of proof to seize property for their own use. Federal officials give 80 percent of seized property to local law enforcement. Reform must include specific provisions to prohibit the use of “Equitable Sharing” to dissuade inappropriate collusion between federal and state law enforcement.

Whereas, NACDL opposes the use of civil asset forfeiture and seeks meaningful reform. The draft model legislation prepared by the Institute for Justice, with input from NACDL members, significantly advances meaningful reform. It restores the traditional presumption of innocence by placing the burden on the state to prove individual guilt beyond a reasonable doubt before any assets can be seized. The model legislation also restrains the corrupt practice of policing for profit by prohibiting law enforcement agencies from retaining property or using “Equitable Sharing.” The legislation further requires that all proceeds from asset forfeitures be credited to private individuals with financial claims against the person convicted of the related crimes, including restitution, before a court orders the remainder to be credited to the general fund of the state.

Resolved that NACDL adopts the attached model as its model legislation for reform of asset forfeiture laws.